Scottish High Court of Justiciary Decisons

McTeer & Ors v. Her Majesty's Advocate [2003] ScotHC 11 (25 February 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Macfadyen	OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEALS by (1) ROBERT McTEER, (2) BEN AHERN, (3) CHRISTOPHER MUIR and (4) ROSS STEVEN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellants: Jackson, QC, J. Farquharson; Carr & Co

Shead; Gilfedder & McInnes:

Brown; Morisons:

Carroll, Solicitor Advocate; Carr & Co.

Respondent: Peoples QC, AD; Crown Agent

25 February 2003

1. The appellants were convicted at Hamilton Sheriff Court on 1 February 2002 after trial before a sheriff and jury of the following charge:

"On 7 October 2000, at Westwood Road, East Kilbride, you Christopher Muir ... Robert McTeer, Ben Ahern and Ross Steven did while acting along with others whose identities are meantime to the prosecutor unknown, assault Alexander McShane, c/o East Kilbride Police Office, and did repeatedly strike him on the head and body with a bottle, repeatedly strike him on the head and body with a belt, repeatedly strike him on the head and body with a piece of wood, and did repeatedly punch and kick him on the head and body, all to his severe injury."

A fifth accused was acquitted on this charge. The trial seems to have proceeded in a straightforward way; but after it had been concluded, the first appellant complained that the foreman of the jury knew him. To explain the significance of this, it is necessary to rehearse some previous history that is not in dispute.

2. Some years earlier the family of the first appellant were friendly with a family called Chambers who lived near them in East Kilbride. The first appellant was at one time a friend of Gary Chambers, who was about two years older than him. On at least one occasion Gary Chambers' father, Peter Chambers, had answered the door to the first appellant. All four appellants and Gary Chambers were pupils at Duncanrig Secondary School, East Kilbride.
3. On 19 July 1997 the first appellant assaulted Gary Chambers in Mossneuk Road, East Kilbride. He was referred to a children's hearing. The ground of referral was that the first appellant had assaulted Gary Chambers "by striking him to the head with a bottle to his serious hurt and injury." The first appellant admitted the ground of referral. The report to the children's hearing by the Social Work Department stated that the first appellant's mother telephoned Gary Chambers' parents to apologise for the assault. It appears that the ill-will between the first appellant and Gary Chambers continued thereafter and that they fought with one another on at least two occasions.
4. When the jury citations were sent out for the trial in this case, a leaflet was enclosed which explained in outline the procedure to be followed in a criminal jury trial. The leaflet included the following advice.

"What should you do if you know the accused?

If you think you know the accused you should inform the clerk of court immediately. The clerk will then report the matter to the Judge who will decide whether you should be excused from serving as a juror on the trial in question ..."

Among those cited for jury service was Peter Chambers.

5. The sheriff clerk who acted in the trial has given an affidavit. She says that she cannot remember the trial in any detail. She describes her usual practice in dealing with prospective jurors. Before the jury were balloted, she would read over to them the names and addresses of the accused and of the witnesses and give a brief description of the charges. She would then explain that if any prospective juror knew of any reason why he should not serve, he should make that fact known to her. She would then give the prospective jurors time to think about the question and then ask it again. She assumes that she followed this procedure in the present case. The Crown accepts that we should proceed on that assumption. At this stage, Chambers did not make known his connection with the first appellant.
6. Chambers was then balloted as a juror. Although the sheriff has not dealt with the point in his report, it is almost certain that in accordance with the procedure recommended by the appeal court in Pullar v HM Adv (1993 SCCR 514, at p. 522F - 523C), he would have reminded the jurors after they were sworn that if any of them had any connection with the trial, they should make that fact known before the trial got under way. The Crown accepts that we should assume that the sheriff followed this procedure. Again, Chambers did not disclose his connection with the first appellant.
7. When the trial began, each juror was provided with a copy of the indictment, which showed the name and date of birth of each accused and his domicile of citation. The first appellant's domicile of citation was 115 Windward Road, East Kilbride.
8. When the jury returned to deliver their verdict, Chambers was their foreman.
9. In his affidavit the first appellant says that he did not become aware of Chambers' presence on the jury until he rose to deliver the verdict. That seems an unlikely assertion, particularly since he also says that he recalls that Chambers was staring at him. But the point is not, in our opinion, material. If Chambers' participation in this case as a juror was improper, the fact that the first appellant may not have raised the matter before the conclusion of the trial is neither here nor there. In any event, this is not a point that can be made in the other three appeals.
10. The advocate depute argued that this case should be decided in the same way as Pullar v HM Adv (supra), which was upheld in the European Court of Human Rights (supra). In that case one of the jurors was an employee of one of the complainers. It was held that while he ought not to have served, his participation had not caused a miscarriage of justice.
11. In our view, the question whether there was a miscarriage of justice in this case has to be answered in the context of the appellants' right to a fair trial under article 6(1) of the Convention and with particular reference to the decision of the European Court of Human Rights in Pullar v United Kingdom (1996 SCCR 755). We take that decision to establish that the question raised in this case should be determined by an objective standard, namely whether the juror's connection with the case justifies the conclusion that the jury was not impartial (ibid., paras. 37 - 39) and that there was therefore a miscarriage of justice. That seems to have been the view of the majority of the court in Rimmer, Petitioner (2002 SCCR 1, at p. 11B - C). The advocate depute accepted that that was the appropriate way of approaching these appeals.
12. Cases such as Russell v HM Adv, (1991 SCCR 790) and Pullar v HM Adv, (1993 SCCR 514) illustrate circumstances in which it was held that the presence on the jury of a juror who would have been excused if his connection with the case had been known had not resulted in a miscarriage of justice. But each case must be decided on its own facts.
13. This case turns on the nature and extent of Chambers' knowledge of the first appellant and the implications of that for the other appellants. On the facts that we have narrated, we shall treat it as a matter of certainty that Chambers knew who the first appellant was. On that view, we consider that the previous connection between the first appellant and Chambers' son constituted a clear ground of disqualification of Chambers from serving on this jury. He had an obligation to disclose that connection before the balloting of the jury or at latest after the sheriff's preliminary remarks. Chambers took his juror's oath in the knowledge that one of the accused had once committed a serious assault upon his son with a bottle and had remained on terms of enmity with his son thereafter. He knew that the charge against the accused in the trial was also a charge of serious assault involving the use of a bottle. The fact that Chambers did not disclose his connection with the appellant at each relevant stage is suspicious in itself.
14. In our opinion, a fair-minded and objective observer, knowing the background that we have described, would have concluded that Chambers would in all probability be hostile towards the first appellant, if not towards all four, and therefore that the verdict in this case lacked the appearance of impartiality. In these circumstances, in our opinion, there was a clear miscarriage of justice.
15. We consider that Pullar v HM Adv (supra), on which the advocate depute relied, is distinguishable on its facts. That was a case where a juror was a junior employee of one of the complainers. There was no evidence that that juror had been involved in any way in the transactions that formed the subject of the indictment. In this case, however, Chambers had had a direct and personal involvement with one of the accused and may well have known of one or more of the others.
16. The advocate depute raised the question whether, if an objection affected only one member of a jury, the verdict could nonetheless be upheld on the basis that, if that juror's vote were to be disregarded, there would still be a valid verdict of a quorate jury. That line of argument depends upon our regarding that juror as representing merely one vote out of 15. The argument was developed by analogy from the decision in Hoekstra v HM Adv (No. 2) (2000 JC 391), where the court observed that if the participation of one judge in a bench of three was irregular, the resulting decision was that of an inquorate bench. In our opinion, Hoekstra does not provide a helpful analogy. The decision of the jury is a collective one reached after discussion to which the juror concerned is to be assumed to have contributed. The decision is given without reasons and, in current practice, without disclosure of a majority; and it is protected against investigation by section 8(1) of the Contempt of Court Act 1981. If one of those who took part in the decision cannot be seen to have been impartial, that flaw, in our opinion, affects the entire decision.
17. We are further of the opinion that if the objection is sound in respect of the first appellant, it is sound in respect of the other appellants also. The charge was to the effect that the appellants had taken part in a concerted attack upon the victim. If Chambers was incapable of taking an unprejudiced view of the case against the first appellant, that would have unmistakable implications for his attitude towards the others. We need not develop the point further. The Crown has conceded that if the first appellant's appeal is sound, all the appeals should be sustained.
18. We shall therefore sustain the appeals and quash the convictions.